Security deposits for leases, being refundable, are not subject to stamp duty under Article 35(c) but may be chargeable under Article 57 of the Stamp Act when adjusting against rent or lease obligations.

JUDGMENT :

G. Satapathy, J.

1. The petitioner by way of this writ petition has invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India praying to set aside the orders dated 29.11.2022, 21.12.2022,12.01.2023 and 05.04.2023 under Annexure- 1 series by which the claim of the Petitioner for refund of the stamp duty and registration charges on security amount paid to execute the lease under Annexure-3 has been turned down.

2. The short facts as involved in this writ petition are, the writ Petitioner is a Company registered under the Companies Act, 1956 and the scheduled property comprising of Plot Nos. 30 & 31 of Khata No. 5 of Mouza-Chhatisha No.2 and Plot No. 114/1316 of Khata No. 186(AJA) of Mouza-Indranipatna, total area measuring Ac. 56.430 decimal was originally leased out by IDCO to M/s. Purvi Bharat Paper and Power Ltd. who surrendered the leased property in the year 2019 and thereafter, the scheduled property was again leased out to the Petitioner Company for 90 years on 26.07.2019 for establishing an industry, however, the Petitioner company sub leased the scheduled property to M/s. InstaKart Services Pvt. Ltd(OP No.7) for 9 years w.e.f 01.12.2020 for a consideration of monthly rent of Rs.26,85,366/- which shall be payable on 10^th of every month, in addition to a sum of Rs. 1,61,12,196/- (Rupees One Crore Sixty One Lakhs Twelve Thousand One Hundred Ninety Six) towards security deposit for the performance of obligation of sub-lease for the purpose of doing warehousing business. Accordingly, a deed of sub-lease drawn up on a non-judicial e-stamp paper with user charges of Rs.550/- containing the covenants, conditions and agreement was presented for registration before the Sub-Registrar, Jagatpur, Cuttack(OPNo.5) who according to the Petitioner erroneously included the security deposit in the consideration amount while calculating for payment of stamp duty and registration charges which eventually led the parties to pay the excess stamp duties inadvertently. According to the Petitioner, since the security deposit which is advanced by OP No.7 for the purpose of performance of sub-lease and the same being refundable at the time of determination of sub- lease, subject to adjustment of liability arising out of sub-lease, no stamp duty is leviable on it and, therefore, the Petitioner is entitled to refund of the excess stamp duty levied on the security deposit, but the authority concerned has refused to refund the excess stamp duty levied on the security deposit by rejecting the representations of the Petitioner. On the aforesaid averments, the Petitioners has filed this writ petition.

2.1. In response to the the notice of the writ petition, OP Nos. 3 to 6 filed their joint counter affidavits stating interalia the following:-

“the security deposit is one kind of money advance which may fully or in part be utilized in case of contingencies or be returned to the lessee on successful and litigation free completion of term of the lease”

On the above averments, it is contended by OP Nos.3 to 6 in their counter affidavits that the Sub-Registrar, Jagatpur, Cuttack has not committed any mistake in calculating the stamp duty and registration fees on the security deposit like all other lease deeds registered in Odisha following the provision of Article 35(c) Schedule-1A (Stamp Duty on instrument) (according to the Orissa Amendment by O.A. No.01/2003).

3. In the course of hearing of the writ petition, Mr. Dayanand Mohapatra, learned counsel for the petitioner has submitted that the security deposit being mainly for the purpose of performance of the sub-lease and the same being refu